) ) THE HUMANE SOCIETY OF CANADA FOUNDATION Applicant ROYAL BANK OF CANADA Respondent ) ) ) ) ) ) ) ) ) ) ) ) Michael O’Sullivan , President v. CEO of the, 2017 ONSC 2641

CITATION : The Humane Society of Canada Foundation v. Royal Bank of Canada, 2017 ONSC 2641 DIVISIONAL COURT FILE NO.: 39/17 DATE: 20170428 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MARROCCO A.C.J.S.C. BETWEEN: ) ) THE HUMANE SOCIETY OF CANADA FOUNDATION Applicant ROYAL BANK OF CANADA Respondent ) ) ) ) ) ) ) ) ) ) ) ) Michael O’Sullivan , President and CEO of the Applicant Rachel Moses , for the Respondent ) ) HEARD at Toronto: IN WRITING RULING CONCERNING LEAVE TO APPEAL cOSTS marrocco A.C.J.S.C. [ 1 ] The applicant was granted an extension of time to file an application for leave to appeal a costs order made after a

summary judgment motion. [ 2 ] Leave to appeal is refused. [ 3 ] A costs award is discretionary. Costs are typically awarded to the successful party and I see no reason to depart from that rule in this case. Leave to appeal a costs order is granted only sparingly and only if the trial judge has made an error in principle or if the costs award is plainly wrong: see McNaughton Automotive Limited v. Cooperators General Insurance Company , 2008 ONCA 597 at paras. 25-26 . [ 4 ] The motion judge’s ruling concerning costs contains no errors in principle. It is not plainly wrong.

The motion judge specifically referenced Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the factors set out in that rule in the portion of her decision concerning costs. [ 5 ] It was open to the motion judge to conclude that the issue at stake in the motion for

summary judgment was important to the respondent because the litigation represented a challenge to the respondent’s practices and rights concerning the closing of bank accounts. The respondent argued that the decision could have repercussions not just for the Royal Bank of Canada, but for all other banks as well. The applicant acknowledged that the Royal Bank of Canada and other banks close thousands of accounts. [ 6 ] The motion judge took a dim view of the fact that the applicant submitted 230 written questions to the respondent, many of which were improper. The motion judge was entitled to this view.

The motion judge was entitled to conclude that this increased the cost of litigation. I recognize that the applicant does not agree with this observation. It is the applicant’s position that the respondent simply refused to answer most of the questions and that therefore the written questions did not significantly increase the cost of the proceedings. This was a matter for the motion judge to determine.

The applicable law concerning the standard of review does not allow me to substitute my view for the motion judge’s view even if I disagreed with Her Honour, which I do not. [ 7 ] It was appropriate for the motion judge to consider the offers to settle made by both parties when considering the question of costs. Having regard to the result, it was open to the motion judge to conclude that the respondent had done as well as its offer. [ 8 ] The motion judge determined that cost should be awarded on a partial indemnity basis and denied substantial indemnity

costs. The motion judge clearly considered the scale of costs to be applied in this matter. It was open to the motion judge to view the scale of costs in the manner in which Her Honour did. There is no basis upon which I can substitute my view of this matter for that of the motion judge even if I disagreed with Her Honour, which I do not. [ 9 ] The motion judge was entitled to award partial indemnity costs for all steps necessitated by the action and the motions of the applicant.

The motion judge was not required to do a fault assessment of each step in the proceedings before awarding costs for that step, as suggested by the applicant in its submissions. ___________________________ MARROCCO A.C.J.S.C. Released: 20170428 CITATION : The Humane Society of Canada Foundation v. Royal Bank of Canada, 2017 ONSC 2641 DIVISIONAL COURT FILE NO.: 39/17 DATE: 20170428 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: THE HUMANE SOCIETY OF CANADA FOUNDATION Applicant ROYAL BANK OF CANADA Respondent REASONS FOR JUDGMENT MARROCCO A.C.J.S.C. Released: 20170428